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Archive for July, 2009

The creation of the ASEAN Inter-Governmental Commission on Human Rights marks a substantial step in the history of ASEAN, and an important move towards the recognition and enforcement of human rights. In this note, I’m less concerned with the substantive issues of human rights, but rather with – as the blog title suggests – the different ways in which we talk about rights.

The blog is far too long . . . but what I do here is use an earlier example, of Burma’s deferral of its chairing of ASEAN in 2005, to highlight differences in the ways in which both substance and politics of rights are addressed. I also use this example to highlight the dilemmas likely to be faced in maintaining a rights-oriented conversation between ASEAN nations and Western observers.

A couple of comments on the recent ASEAN developments will do to illustrate the preliminary issues – that is, the potential tension between “rights talk” and “rights enforcement”:

“. . . examines the ASEAN Inter-Governmental Commission on Human Rights (AICHR) and whether it will be adequate and effective in responding to major human rights problems in the region. While the author argues that its establishment marks an important step in ASEAN’s history toward more people-focused action (not state-centric rhetoric), he notes that AICHR’s establishment does not yet demonstrate follow-through or the ability to collectively enforce its values.”

http://www.isn.ethz.ch/isn/Current-Affairs/Policy-Briefs/Detail/?lng=en&id=103545

“Indonesia will push for the creation of a regional human rights body that will have the power to monitor and investigate rights abuses in ASEAN countries, the Foreign Ministry said Friday.

“We want the future rights body to be more than just an educational institution on human rights,” ministry spokesperson Teuku Faizasyah said. He added however that it was too early to talk about the kind of sanctions that will be imposed on countries that violate the rights of their citizens.”

http://www.thejakartapost.com/news/2009/07/10/asean-rights-body-must-have-teeth-ri.html

“Even as foreign ministers from the Association of Southeast Asian Nations (ASEAN) are set to today approve the terms of reference for an ASEAN Human Rights Body, activists said the grouping must ensure that the body is not a mere ‘Talking Show’.”

http://www.mizzima.com/news/regional/2475-asean-rights-charter-met-with-criticism.html

I.

On 26th July 2005, Myanmar announced, at the start of the 38th Association of South East Asian Nations (ASEAN) Ministerial Meeting in Vientiane, that it would give up its right to chair ASEAN in 2006[2]. That role then passed to the Philippines following the alphabetical rotation of the role. The reason given to the meeting for this was that Myanmar wished to focus its full attention on the “ongoing reconciliation and democratisation process”

Responses within ASEAN indicated approval of that decision and a reaffirmation of the “ASEAN way” of avoiding confrontation. This decision was applauded as a recognition by Myanmar of the value placed on ASEAN unity. Also, as indicated by Mr George Yeo, Singapore’s Foreign Minister, it was “wise” for Myanmar to “decouple” its domestic politics from “the affairs of ASEAN”[3].

Two issues are suggested immediately by this development: first, the perceived importance of a common manner of conducting delicate conversations amongst the ASEAN partners; and second, a willingness, again amongst these partners, to separate the “internal” from the “international” in politics. While the issues of internal politics are not neglected – indeed, they are the reason for the delicacy of the conversations about Myanmar’s potential chairing role in ASEAN – the conventions of a dialogue process and of  the whole ASEAN accord mean that the member nations maintain official silence on their internal political differences[4].

These two threads are inseparable: they form the warp and the weft of how dialogue is conducted between the ASEAN partners. My interest here is to comment briefly on the differences that have become apparent between this “ASEAN way” of conducting dialogue and the approach of the “West” in addressing the issues of human rights abuses and the failures of democratic processes in Myanmar. A common interest exists between those countries of the West that have directly addressed the need for change and democratisation, and those neighbouring ASEAN nations which would also wish to foster change and bring an end to the human rights abuses in Myanmar. There is, however, a significant gulf between the manner is which each grouping approaches the task. While there is a clear risk in painting these differences with too broad a cultural brush and in drawing conclusions about “Western” and “Asian” ways of doing international politics, there are significant and self-identified differences which begin to explain approaches to dialogue.

My concern here is to comment more on the process aspects of the relationships within ASEAN – effectively, the first of the threads mentioned above. The second thread – that of the agreement on the separation of internal and international politics – is a larger theme which both goes to the heart of the relatively recent political histories of the region and, in turn, shapes approaches to dialogues on democracy and rights. In brief, any discussion about the “Asian way” of doing politics needs to be set against a backdrop of the post-colonial rise and establishment of the nation state in South and South East Asia[5]. It is a common theme in the analysis of political life in the region, and a response to external expectations as to progress on democratisation, that nations which have relatively recently arrived at independence – and 50 years is relatively recent – are, first, still in the process of creating indigenous forms of democracy; second, reluctant to subject that process to external scrutiny, especially if it appear to come from formerly colonial sources; and third, equally reluctant to partition or attenuate the integrity of statehood through conceding too much authority to superordinate structures – such as the EU nations have – or even to international conventions which demand compliance with external norms. This reticence, in turn, will of course reinforce the external view that the Asian way is an “obstacle” to democratisation and to the establishment of international norms of rights and freedoms. It may also confirm the suspicion that democracy’s apparently fragile hold in some parts of the region is as a result of the persistence of traditions of hierarchical and authoritarian rule.

What I set out to explore here is the difference in cultural styles of communication, set against this backdrop of political history, with a view to focussing attention on the gains that can be made in understanding those conventions of regional diplomacy without the easy temptations of contrasting “Asian” values with “universal” or “international” values[6]

II.

At the heart of the difference is the mode of conveying to Myanmar the expectations that progress be seen in the moves towards democracy. That the lack of progress was an issue for both ASEAN and the West is seen in the discomfort the ASEAN partners had in contemplating Myanmar’s entitlement to take the chair in 2006, and in the insistence on the part of the EU and the USA that substantial progress be made towards institutional and regime change as a condition of their participation in the ASEAN Regional Forum meetings – in the absence of which progress both the EU and the USA would decline to attend.

The question for both “sectors” is this: if you need or want to bring another into dialogue, especially in order to deal with either a troublesome aspect of the relationship or to seek a change in their conduct, what are the options? On the one hand, there is the option of coercion and threat: the imposition of sanctions, the prospect of more stringent economic and political pressure, the exclusion from further dialogue. On the other, there is a style more in the nature of invitation and the provision of opportunities to make changes of one’s own accord rather than under the threat of sanction.

In either case, the intention is to convey a message about the desirability of change, but the style of conveying the message is substantially different. There is a further communication dimension to this, which becomes especially apparent and important in the ASEAN context: messages, whether in the form of demands or invitations, involve both the intention of the speaker and the impact of that message on the recipient. While it might be a common intention of the Western and ASEAN nations to speed up progress towards democracy in Myanmar, the impact of the mode of conveying that intention – through sanctions, on the one hand, and “constructive engagement” on the other – is likely to be received very differently in Myanmar, and therefore likely to produce different results. Thus, as the brief news items reporting Myanmar’s decision suggested, Myanmar’s decision was more in response to ASEAN’s desire for “open dialogue” and its affirmation of the principle of mutual non-intervention in the internal affairs of member nations than it was (or was conceded to be) in response to the imposition of sanctions by the West.

III.

Surrounding the decision by Myanmar to defer its taking of the ASEAN chair, there were two lines of international diplomacy. Within ASEAN there was the regularly reiterated preference for “quiet diplomacy” and the other essential strand of ASEAN, the principle of non-interference in the internal affairs of member nations. In the wider and Western diplomatic world, the path being taken was more that of the development and implementation of “measures” to pressure the Myanmar regime towards greater progress on democratisation. In both cases, the espoused aim of the measures was to bring the regime into more open dialogue on democratisation. In each case, the strategies adopted reflect the conventions – and broadly, the cultural styles – of engagement.

It is commonplace in commenting on conflict resolution to observe, both domestically and internationally, that a spectrum of tools and processes is increasingly available and utilised. Those tools range from the facilitative to the coercive, with a reliance on the promotion of common perceptions and purpose at one end of the scale to a reliance on the strength of either rules or of bare power to effect movement in the relationships between the parties. Whether we look at multiple sites of decision making and problem solving within the domestic context or the activities of diverse actors in multi-track international diplomacy, the picture is broadly the same: we are increasingly aware of the rich range of resources potentially available in the management, mitigation and prevention of conflict.

Add to this one further element: the choice of process, whether it is relatively informal or formal (or coercive) may reflect cultural and collective preferences for a style of decision making or conflict resolution. This topic had been treated widely in a burgeoning literature on culture and conflict resolution and there is no need to repeat that work here, expect to make this point: the decision by Myanmar can be seen as an important illustration of the impact of a mutually understood style of conveying messages within a broadly defined community of neighbours. Substantively, there will remain reservations about the effectiveness of progress towards institutional and political change; internationally, it is likely that the approach of ASEAN will be seen as ineffective, inefficient, and overly protective of a regime which, by common agreement, remains oppressive. There is also likely to be wide agreement on the preference that Myanmar should not take the chairing role of ASEAN. But there are clearly different ways of expressing that preference and providing reasons that Myanmar could, without appearing to have conceded too much, offer to defer its right to the chair.

There are two points to consider here. The first is that the dilemma reflected in the approaches to Myanmar is one of scope and style of argument. The approach broadly characterised as that of the West is one in which expectations about human rights are articulated in the language of international conventions and universal norms. The sanctions that attach to the failure to meet those norms are intended to reflect not only the disapprobrium of the imposing nations or regional organisations but also the universal imperatives of the norms. Indeed, it is the claimed universality of those norms that grounds the political and moral stance.

Typically, those sanctions are coupled with expectations about specific steps to be taken towards democratisation, including institutional, economic and structural changes. Thus, the approach is presented or at least perceived as a package of prescriptions, the satisfaction of which will lead to a re-inclusion in the international community but the failure of which will probably lead to an escalation of pressure.

While those norms of human rights can both legally and morally be regarded as having near-universal currency, not least because of widespread accession to the range of international instruments, there is a problem when they become the basis for pressure for internal changes – notwithstanding the expectations that nations will move towards compliance. The dilemma is one of the contradiction between the universal expectations of human rights norms – as a criterion for good governance and international acceptance – and the particular adhesion to sovereignty. This is the first of the problems underpinning the meanings attached to and read into messages such as those about human rights, democratisation, and the acceptability of Myanmar’s possible chairing of ASEAN.

The ‘older’ democracies – in which we can include the US – continue, of course, to adhere to the fundamental precepts of the inviolability of national democracy and to the realist stance of the primacy of states as international actors. That said, it is also increasingly the case that elements of that sovereignty have been conceded or modified, whether its though compliance with those international norms and a consequential modification of domestic law or through participation in collective enterprises such as transnational forms of governance like the EU or in the granting of wider powers to regional organisations such at the Organisation for Security and Co-Operation in Europe (OSCE).

The ‘newer’, or emerging and transitional democracies, some of which make up the membership of the ASEAN grouping are, on the other hand, likely to adhere more strictly to the hard view of the inviolability of sovereignty. Various reasons can be advanced for this, including the idea that it is only the older and more established democracies that have the luxury of the softer view of their national sovereignty and – more cynically – the suspicion that few if any of these newer and emerging democracies could readily withstand the glare of too great a degree of international scrutiny of their compliance with universal norms.

Accordingly, the expectations of ‘democratisation’ are likely to be re-branded for ASEAN consumption as ‘dialogues on reconciliation’ (the language used by Myanmar). Equally, ASEAN nations invoke as a core argument for non-intervention and non-criticism the principle at the core of the ASEAN Treaty of Amity and Cooperation, in Chapter 1, Article 2, which reads, in part, that “the High Contracting Parties shall be guided by the following fundamental principles:

  1. Mutual respect for the independence, sovereignty, equality, territorial integrity and national identity of all nations;
  2. The right of every State to lead its national existence free from external interference, subversion or coercion;
  3. Non-interference in the internal affairs of one another.”

What therefore creates a distinction in approaches to nations with which the international community does have common difficulties and with which most nations would welcome sincere dialogue on internal reforms is this difference of emphasis on either the primacy of universal norms or of sovereign inviolability. This is not to suggest that those nations – especially in ASEAN – which agree on the primacy of sovereignty do not also accept the value of human rights: these, after all, form part of the implicit message that ASEAN conveyed to Myanmar. But – and this leads to the second main point – the significance lies in the manner in which the message is conveyed.

The second point illustrated by the recent ASEAN events is this: while there are substantive differences of emphasis on universal rights norms or on inviolable sovereignty, there are also significant, sometimes more subtle differences in how the message is conveyed. The language of the Joint Communiqué of the 38th ASEAN Ministerial Meeting in Vientiane conveyed Myanmar’s decision to relinquish its turn to chair ASEAN with the appreciation that Myanmar “has shown its commitment to the well-being of ASEAN and its goal of advancing the interest of all Member Countries.” Equally, the stance taken by ASEAN in inviting Myanmar to join – at a time when the wider response internationally was one of isolation and exclusion – was that of encouraging “constructive engagement”. What is at stake here is less a matter of the substantive concerns over human rights which are largely shared by the ASEAN partners than a matter of method and style of communication. As indicated earlier, both the Western partners – principally the US and EU – and the ASEAN nations share a goal in bringing Myanmar into dialogue about and eventually changes in their human rights record and political institutions. The ASEAN nations however, both for reasons for Treaty obligations (as above) and culture, eschew the directness and prescriptiveness of sanctions and external pressure. And it is this indirectness which is seen in the language of the Communiqués in which no reference is made to matters internal to Myanmar’s governance, but is made rather to the consideration that Myanmar had shown to ASEAN in making the decision, reflecting a joint respect for the express provisions of the Treaty and – implicitly – for the expectations of shared diplomatic and cultural language.

What we have, then, is two broad styles of cultural language illustrated in this example. Broadly speaking, “Western” approaches, especially those of the US, tend to be prescriptive, universalist, and political; that is, they are couched and perceived as directives relating to the release of prisoners, the recognition of human rights, and the imperatives of structural change. There is also typically a tendency to link economic co-operation or aid with the satisfaction of certain standards of democratisation and openness. The expectation is that the recipient of such messages will concede to the weight of international pressure: the substantive results of meeting institutional and political norms are arrived at through compliance.

ASEAN/Asian approaches, on the other hand, tend to be elliptical, indirect, and non-prescriptive; they tend to be couched in broad terms, either aspirational or metaphorical; typically reinforcing values perceived to be common – such as “amity”, “being open” or “maintaining regional security”. The implications of this style, frequently identified in other aspects of regional negotiation and communication style, are that such broad statements, in not being prescriptive, permit the recipient to make the decision on the action to be taken, though it also understood that both parties know what needs to be done. Expectations, but not prescriptions, are conveyed. The recipient of the message is left with an invitation and with the choice; and, as responses to Myanmar’s decision indicated, compliance with those expectations will be met with collective approval.

In terms of research on cultural styles in communication and negotiation, what we see in the different approaches to Myanmar and its entitlement to take the chair of ASEAN reflects neatly reflects the distinctions drawn by Hall between “high context” and “low context” cultures[7]. Low context cultures are typically characterised as industrialised, mobile, and individualistic and are settings in which there is a reduced level of shared assumptions and values – hence a low level of “context” on which to draw in communication. Communications therefore tend to be direct, and low in metaphor and inference: what you hear is, by and large, what you get.

High context cultures are, by contrast, traditional or modernising, still have strong collective or community ties and show a relatively higher – if not unmitigated – degree of collectivism. Communication in such world can draw on a high level of common assumptions and are thus characterised by inference, metaphor and a more elliptical style.

Using the same broad brush, the Western nations which have been instrumental in promoting sanctions as a means of persuading Myanmar to come to the table fall into the “low context” category. And the ASEAN neighbours – albeit to differing degrees and with variable commitments – fall into the “high context” category. It could also be said that ASEAN as an entity is a high context organisation and it enshrines in its founding documents the values of the “soft” approach to diplomacy, not only in the principles of non-intervention but also in the aspirational style of the language which can be seen in any of the ASEAN statements. The alternative to this agreed style of diplomacy would be the creation of a set of rules and explicit standards for political and democratic life in the region, non-compliance with which would be grounds for more forceful diplomatic action. This option is under consideration in the form of an “ASEAN Charter” with an Eminent Persons Group being given a mandate to examine practical considerations for inclusion in such a Charter. This is a step towards a binding Constitution for ASEAN. Until the completion of that process, however, the emphasis remains on the familiar diplomatic conventions of ASEAN.

Culture and diplomatic language thus currently come together well to illustrate the intentions and perceptions involved in relying on either sanctions or signals in conveying expectations. If what was intended by either approach was the avoidance of the embarrassment of Myanmar’s chairing ASEAN for the next year, this was achieved by the decision made by Myanmar. That decision leaves untouched, of course, the very real substantive issues of minimal progress towards democracy and the implementation of real human rights protections and no doubt Western observers would have preferred to see more conditions attached to both the deferral of the chairing role and the prospects that Myanmar would take that role in due course.

What may be important for both Western and ASEAN purposes, however, is the fact that “face” has been saved. First, it should be noted that part of Myanmar’s statement indicated a desire not to place ASEAN colleagues in a difficult position. Second, in deferring its entitlement to chair ASEAN, Myanmar was able to make – or be seen to make – its own decision. The West can read into this, if it likes, the efficacy of pressure; ASEAN will read this as indicative of the value of non-intervention. Third, Myanmar was also saved from an ASEAN decision to take the chairmanship away from them, which would have created an awkward precedent. And thus ASEAN was saved from being put in that position; and saved from the embarrassment of the EU’s avoidance of the meeting (though the US’s Secretary of State had already indicated that “her schedule” did not permit which can be read literally by the West and metaphorically by ASEAN: messages do not necessarily arrive bearing the same meaning as that with which they were sent!)

IV.

The “Asian” way, for all that it might have produced the “right” result in this case in relation to the chairmanship of ASEAN, is likely to be seen by the West as evasive and as failing to take a stand on international norms and rights. Equally, the Western way is likely to be seen as indicative of renewed US domination and a push for specific political systems or order; and reminiscent of colonial power.

The downside of the ASEAN way still needs to be considered in that it permits the continuation of political and human rights abuses in the name of the inviolability of internal politics and neatly shields all member nations, not just the most obviously recalcitrant, from regional or neighbourly criticism. Cynically this might be seen as part of a collective regional unwillingness to permit commentary on internal politics in the region’s “soft authoritarian” states, not all of which come out well in Amnesty reports.

That said, and without diminishing the enormity of human rights abuses that are well-documented, a procedural and diplomatic value remains in understanding the cultural dimensions evident in the approaches to such dilemmas, not least because of the accession of New Zealand (July 2005) and of Australia (December 2005) to the Treaty of Amity, which brought two nations from more of the “Western” side of the fence to the negotiation table, and with it a need to adjust to the ways of conveying expectations. For those familiar with negotiation in, for example, Japan and China, the experience is clear that the words typically convey a lot more than – and sometime other than – what is apparently said, which makes it all the more difficult for those who expect the words to convey the whole meaning and find it next to impossible to read meaning into what is not said.

There is another dimension to this discussion which also takes place in most nations where there are ongoing and sometimes difficult discussions between indigenous peoples and the state; or in those international settings where “culture” and “tradition” are used as a defence against the recognition of otherwise international norms. This can be linked to the present discussion to the extent that the “ASEAN way” is a comprehensive shield to cover and protect the diverse values and traditions of the Asian nations who make up the membership (and to which non-Asian nations are now acceding). To recognise that there is a substantial difference between the ways in which the “West” and “ASEAN” convey their expectations of other members of the international community is not to belittle the degree to which the both the assumptions of the universalism of norms and the integrity of culturally understood norms can preclude as much as they foster communications. But it is to affirm that – in keeping with the spectrum of dispute resolution options – that there are diverse ways of getting the message across.

To return to an opening point, both the West and ASEAN have – through sanctions and signals – sought to bring Myanmar into dialogue on human rights issues. That purpose continues though the immediate challenge of Myanmar’s formal entitlement to take the chair of ASEAN has been at least deferred. One lesson that can be taken from this episode relates to the field of international negotiation generally and it is that parallel negotiations, conducted according to differing norms, may take place, each reflecting the political and normative priorities of the negotiating, “message-sending” parties. There is a common purpose to these twin tracks of negotiation – adherence to human rights norms and visible progress towards democracy. Both tracks remain important, especially in terms of the stance that each message-sending party chooses to convey, not least to its own constituencies. But there is a difference in terms of what is expected of – or offered to – the “recipient” of the messages: compliance or a graceful exit. While those sending a message of the expectations of compliance might be less interested in offering such a graceful exit, both the conventions of international diplomacy and the more recent practices of “principled negotiation” would seem to suggest that the values espoused by the ASEAN way are not unfamiliar to the West: the values of constructive engagement and the exploration of options and inference, leaving parties the opportunities for commitment rather than mere compliance. At the very least, at the closing stages of such a negotiation, where there is a pressing need for a decision on the specifics of chairing ASEAN quite apart from the longer term imperatives of democratisation, there is an argument for the value of reliance on a “text” for the negotiation which reflects the agreed and shared norms of those most closely involved: Myanmar’s decision seemed to indicate that the message was received, even if its style was more elliptical and the time frame for substantive change more flexible than outside observers might have wished.


[2] “We have been informed by our colleague, Foreign Minister U Nyan Win of Myanmar that the Government of Myanmar had decided to relinquish its turn to be the Chair of ASEAN in 2006 because it would want to focus its attention on the ongoing national reconciliation and democratisation process.  Our colleague from Myanmar has explained to us that 2006 will be a critical year and that the Government of Myanmar wants to give its full attention to the process.  We would like to express our complete understanding of the decision by the Government of Myanmar.  We also express our sincere appreciation to the Government of Myanmar for not allowing its national preoccupation to affect ASEAN’s solidarity and cohesiveness.  The Government of Myanmar has shown its commitment to the well-being of ASEAN and its goal of advancing the interest of all Member Countries.  We agreed that once Myanmar is ready to take its turn to be the ASEAN Chair, it can do so.”

Joint Communique of the 38th ASEAN Ministerial Meeting; Vientiane, 26 July 2005

http://www.aseansec.org/17592.htm

[3] Straits Times, July 27th, p. 1

[4] “. . . deference . . .to domestic sensitivities of neighbours, also led to the emergence of unwritten rules of non-interference in and non-comment upon . . . sensitive subjects such as corruption, nepotism and political repression in neighbouring states – in the interest of stable regional relations.” Chin Kin Wah, “ASEAN: Domestic Sources of Regional Stability/Instability,” http://www.inpr.org.tw/publish/pdf/recent/event913.pdf; p.2

[5] See, for example, Wang Gungwu (ed) Nation Building: Five Southeast Asian Histories, ISEAS,  Singapore, 2005

[6] Michael Fullilove: ‘any internationally acceptable candidate from Asia would have to demonstrate strong support for universal values and could hardly have been a proponent for the “Asian values” argument’; citing a “recent gathering” of Asian diplomats and UN officials, in “Angels and Dragons: Asia, the UN, Reform, and the Next Secretary-General,” Lowy Institute Issues Brief, July 2005; p. 15

[7] E. T. Hall, Beyond Culture, (New York, Anchor Books, 1976); and The Silent Language, (New York, Doubleday, 1959)

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For those who have been watching the development of mediation and informal justice over the last three decades, China has provided an endless source of commentary on not only the apparent pervasiveness of mediation but also on the diverse forms of the process. While mediation in China (and Japan, Liberia and elsewhere) has provided early evidence of the use of extrajudicial, relatively informal processes of dispute resolution, and arguments for the now-familiar growth of such processes in the West, the apparently more interventionist, state-linked style of mediation has not been taken as the model of the mediation process to adopt.

The question is, however, just how pervasive was and is mediation in China. An interesting new article takes up this question in order to find empirical evidence of the middle ground in the debate: Benjamin L. Read and Ethan Michelson, “Mediating the Mediation Debate: Conflict Resolution and the Local State in China”, Journal of Conflict Resolution 2008; 52; 737 originally published online Jun 6, 2008

Their concern is that, on the one hand, there are those who have seen mediation as foundational, pervasive, omnipresent and preferred: Wall and M. Blum, 1991. Community mediation in the People’s Republic of China. Journal of Conflict Resolution 35:3-20 (and other articles by Wall and colleagues) fall into this category.

On the other hand, Diamant has taken issue with this view of mediation, arguing that is does not have the spread that Wall et al suggest and indeed is seriously eroded by modernisation and a preference for law and formal institutions. See Diamant, N. J. 2000. Conflict and conflict resolution in China: Beyond mediation-centered approaches. Journal of Conflict Resolution 44:523-46.

If the latter view is the correct one, then it has interesting implications for the comparative development of mediation in the West and East: if modernisation creates an impetus, in Asia,to move away from the community-based and informal processes of mediation, this contrasts with an apparent move in the other direction in the West, to the extent that there is a growing preference for mediation across the range of disputes and contexts.

Happily, this empirical research by Read and Michelson suggests that neither Wall nor Diamant have the picture quite right (as is so often the case, and as is appropriate in this setting, the Middle Way finds the right balance!). Mediation is neither the all-pervasive and intrusive process that Wall suggests; nor is it in terminal decline as Diamant suggests.

Without going into the article and argument in detail, what I do find interesting are these key points:

  1. rural dwellers are more likely than urban counterparts to use mediation (in part at least because of the range of options more readily available to the latter);
  2. the use of mediation may have become more attenuated – at least in urban settings – as the political and ideological role of the mediators has been reduced (but in rural settings, mediators are likely to be called on for a wider range of disputes);
  3. there is no significant demographic indicator as to the likely profile (age etc) of mediation users;
  4. but – here’s a key difference with Western mediation perhaps – the factor that most has to do with a disputant’s preference for mediation is the relationship with the mediator; that is, in particular, the degree to which the disputant(s) already had some involvement with the local committee, especially the Villagers’ Committee in rural areas;
  5. mediation is more closely tied to the state apparatus in China and many other parts of East Asia (including Singapore) than in the West – though given the rise of court-linked mediation programmes, this too is changing;
  6. ‘mediation’ is not readily defined in many East Asian contexts – here using the example of China – and is more likely to take the form of an appeal for intervention by the local officials and agencies (the ‘mediators’), who in turn are likely to use a variety of interventions, not all of which would be conventionally regarded as mediation in the West;
  7. the ‘success’ of mediation is likely to be overstated – probably because of the expectation placed on state officials to give positive accounts of their work (to what extent is this likely to be an issue as mediation becomes more institutionalised in the West?);
  8. women – especially rural women – are more likely to call on mediation (or at least intervention), and particularly in intra-family disputes: the lower social status and influence of women means that there is greater imperative to call on outside assistance;
  9. more highly educated families and individuals in rural areas are less likely to call on mediation, because of a preference not to have their affairs dealt with in this more public forum (ironic that mediation is seen as more public, whereas its proclaimed virtue in the West is its confidentiality);
  10. but those who are relatively wealthy, and have had more dealings with local authorities, are more likely to call on the officials, in the expectation of a more sympathetic hearing.

At the heart of this is one key difference (well, at least one I’d draw out): disputants are more likely to call on mediators and local officials if they already have a relationship with the mediators. As Read & Michelson conclude: “A person’s choice to make use of this institution depends in part on who she is and how close she feels to those who would be doing the mediating.” [758]

So – the design of mediation institutions in, say, Singapore, may need to take account of at least the possibility of this preference. All the more so as Read and Michelson do not share Diamant’s view that modernisation necessarily spells the end of mediation in Chinese society. This is all the more the case in settings – including Singapore – where mediation is likely to remain closely linked to the state apparatus – and going to mediation is not necessarily a preference for mediation but rather a preference for whatever it is that will resolve the dispute.

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In the introduction to his book Law and Warfare, legal anthropologist Paul Bohannan suggested (p. xii) that “There are basically two forms of conflict resolution: administered rules and fighting. Law and war.”

It’s a stark contrast and an interesting provocation; but of course it’s simplistic and it leaves out the other option: talking. And maybe we’re faced with another kind of polarity: fighting (either literally or through the gladiatorial contest of law) or talking.

The assumption of much of the recent decades of work in dispute resolution has been that the latter is always preferable and is, in most cases, attainable. The objective of this work, ranging from negotiation through to civil conversation projects and dialogue workshops, is to keep the conflict at bay through talking. At the heart of the familiar models of negotiation and mediation is this assumption that, through talk, we arrive at an accommodation of our respective needs and in doing so we best articulate our reasoned and reasonable expectations.

However . . . in the same way that we now ask whether we share the same cognitive processes of reasoning and perception, it might be asked whether talking is necessarily the best way to facilitate thinking and reflection. [Think about it this way for a moment: we all know someone – we might even BE that someone – who doesn’t really know what they think until they talk it out; and the very process of talking might finally clarify the thought, even if it takes others on a convoluted journey.]

I’m drawn to this question by coming across a fascinating article by Heejung S. KIM, “We talk, therefore we think? A cultural analysis of the effect of talking on thinking,” Journal of Personality and Social Psychology 2002, Vol. 83 (4), pp 828-842. The assumptions she tests in her reported research are ones that I imagine are familiar to most mediators – talking is good; talking is a way of clarifying one’s thinking; silence is often indicative of being withdrawn and uncommunicative; dialogue and conversation are foundational dispute resolution and peace-building resources.

Now, the research – more of which in a moment – doesn’t oblige us to abandon this goal of keeping the fires of dialogue burning. But it does oblige us to question whether talking is equally attached to and formative of thinking for the archetypal Westerner or Easterner. There’s a link to earlier comments on Nisbett’s work for me, in recognising different cognitive patterns in Asian and Western societies – broadly characterised as either holistic and contextual or rational and analytical. In drawing this distinction, none of the writers assumes to privilege one over the other: this is more an exercise in reinforcing the fact that, at times, we do think differently. [On this, see the anecdote reported by Jeff Bean in his blog http://www.beyondthecourthouse.com/2009/07/funny-thought/].

Without trying to capture the sense of the whole article, which is well worth reading, I just note a few points that I think are relevant for mediators working cross-culturally, and for those of us thinking about ways in which mediation in Asia might be a different beast from its cousins in the West.

This is also relevant in education – as Kim points out – in that the model of contemporary education involves participation, speaking up in class, developing verbal confidence and competence. And the failure to meet those norms is likely to have the student seen as underperforming, reluctant or – worse – recalcitrant.

First, Kim – like Nisbett- distinguishes two key modes of thinking:

  1. the analytical-cognitive, with a tendency to break the objects of thought into component parts; and
  2. the holistic-contextual, with a tendency to see patterns rather than parts, and relationships rather than separable items.

The tentative conclusion drawn from this distinction is that the former style of thinking is more  likely to be developed through verbalisation – and conversely, that verbalisation will not typically impair thinking. So, getting people from this cultural world to “think through problems” will be familiar and comfortable – as will be the problem solving style that breaks issues into apparently separable parts.

Equally, for the latter style of thinking – holistic, contextual  – the thinking process is not always easy to verbalise and indeed thinking or problem solving might well be impaired by an expectation to think out loud:

“Putting together these findings on the effect of verbalization on different types of cognitive tasks and cultural difference in the mode of thinking (i.e., holistic vs. analytical), it is reasonable to hypothesize that East Asians who tend to use holistic thinking would be negatively affected by talking, but European Americans who tend to adopt analytical thinking would not be negatively affected by talking.” [830]

Secondly, as a matter of education and upbringing, Western children are more likely than their Asian counterparts to have been encouraged to speak up: socialisation patterns differ in relation to expectations about talking or its perceived counterpart, passivity.

Kim devised three different tests to explore the hypotheses about differences in talking and its impact on thinking – specifically to determine whether (for sample European American and East Asian American students) talking while solving problems had a negative impact on thinking; and whether there were beliefs about talking and thinking from early parenting style.

As indicated before, the research shows that, for European American students, talking is more likely to be seen as good for thinking, and talking is less likely to distract from the process of thinking. The results of the problem solving exercise were also tested for the impact of culture on the time taken to complete the exercise or the accuracy of results – and culture was seen to have no effect in this regard. But it does have an impact on the levels of perceived interference or facilitation that talking provides to thinking.

“Thus, people who were engaged in practices that emphasize talking tend to share the belief that talking and thinking are closely related, and also report that language is important in their thinking, and also those who claimed that talking is important in their thinking, tend to indeed think better while talking than those who did not. . . . In other words, it is plausible that people from a cultural context where talking is considered to be important and beneficial for thinking might be more likely to process their thoughts through language, whereas people from a cultural context where talking is considered to be less important and harmful to thinking might be less likely to process their thoughts through language.” [835]

Third – and this too is a point relevant for both educators and mediators: people from those cultures less given to overt articulation might regard too much talking as a way of drawing unnecessary and inappropriate attention to oneself. The cultural style reflected in degrees of expressiveness is also likely to be linked to values of individualism (for the more outspoken and verbal) and collectivist (for the more interior ones).

The message for the mediator in all of this is that we cannot necessarily assume that “talking it out” is a natural or easy thing to do for all participants; nor that it is socially appropriate to draw attention to one’s own alleged interests in this way. Nor can we assume that the more silent participants are not engaged  and thinking through the issues – but in perhaps quite different ways.

Nor, it must be said, can we readily assume that the more articulate and verbal participants are actually making a thoughtful contribution to the problem solving: the “noise-to-signal” ratio in any communication will be a variable commodity!

Mediation emphasises the value of talking and of a particular cognitive style of problem solving. Recent scholarship in comparative dispute resolution points to diverse styles and models in relation to factors such as mediator roles, levels of authority, expectations of mediator neutrality. But we now have good reason to think about the differing ways in which we think and especially ways in which we may talk about our thinking.

“When there is the assumption that talking is closely related to thinking because good thinking is defined as analytical thinking, people will build their institutions, such as school curricula and teaching philosophy . . .  and formulate social practices, such as child rearing . . .  or interpersonal evaluation . . . according to the assumptions. Talking will be encouraged and emphasized by parents and teachers to make their children better thinkers, and being articulate becomes a sign of good thinking. Tasks such as talking while thinking are made natural in this cultural context. Thus, these institutions and practices that implicitly represent cultural assumptions about talking and thinking contribute to the development of an analytical thinking style that can be most aided by talking and foster individual minds in which there is a close connection between talking and thinking.” [839, references omitted]

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It’s scarcely surprising these days to note the wide range of support for mediation – and indeed to note the degree to which it is litigation that is daubed with the ‘alternative’ tag. It’s even more encouraging to see the degree to which major law firms are not merely using, but also advocating it and undertaking empirical research on the benefits – to substantiate the often enthusiastic claims as to the success rates and cost savings.

I note here just one example, simply because of my recent contact with them here in Singapore. The international law firm, Herbert Smith LLP, has been keeping statistics on ADR use for some time, and has also conducted research on attitudes of users of ADR.

See, for example, http://www.herbertsmith.com/NR/rdonlyres/1CBC5541-06B6-4D4E-A03C-8D3846868D10/0/prosandcons_ADR0508.pdf

And, from The Mediator Magazine: http://www.themediatormagazine.co.uk/news/27-herbert-smith-unveils-important-new-research-into-adr-use – on HS’s survey on why the “blue chips” are increasingly turning to ADR. Also reported in LegalWeek.com: http://www.legalweek.com/legal-week/news/1155215/herbert-smith-bluechips-adr

The flip side of this is the comment that I’ve heard on a numerous occasions since returning to Singapore just over a year ago, to the effect that mediation doesn’t have a high profile here;mediation is not [yet] widely accepted; there’s still a level of resistance in the legal profession to mediation; mediation is seen as the process you use for family, neighbourhood, community disputes, but not for the big ticket commercial stuff. This will be familiar to many as the kinds of arguments that were raised 20 years or more ago. And the irony is that, while mediation was first seen as a low-cost means of enhancing access to justice for those who might not have access to the courts, thus freeing the courts for the commercial cases, it’s now the commercial people who are amongst the strongest promoters and users.

But what we may have here is a double cultural speed bump (not a barrier!) to the implementation of mediation. First, despite the fact that mediation is perhaps the oldest and most traditional form of dispute resolution in this region, it remains unfamiliar in its modern incarnation. The traditions of mediation rest on non-litigious values, and on the perceived role of elders and those bearing some degree of authority in persuading disputants towards resolution. Enough has been written on this elsewhere to illustrate the recent history of mediation, the borrowing of the forms of mediation by the West, and the adaptation through developing norms of mediator neutrality, mediator qualifications rather than authority (that’s another thread of conversation currently going on, if you check the blogs on www.mediate.com), and principles of disputant autonomy and the confidentiality of the process. The mediation we’re now selling – and especially trying to sell as a serious commercial resource – may well face the impediment of these long-held perceptions of mediation as a process that is essentially community-based, reliant on the authority and wisdom of elders etc.

Alternatively,  rather than regarding this as an impediment, the task might be that of adaptation, in recognising that, in more traditional and hierarchical societies, the mediator does have a different social and normative role.  And, despite its obvious modernity, Singapore retains – and proudly retains – many of those attributes of traditional and Confucian values.

The second part of the cultural speed bump relates to the professional culture of lawyers. It’s an issue which most jurisdictions have faced in the development of mediation. And perhaps because of the first of these cultural factors, the legal profession is said to be not yet fully apprised of the benefits of mediation. It has to be said also that one of the arguments for mediation, in overcoming delays in the formal legal process, simply isn’t a major issue here.

There are, I think, two phases to addressing this: first, in providing the evidence that mediation is, in fact, the better way to deal with disputes and that litigation is a low-ranking option; and second, in providing training in mediation (against a background of the assumption that professional dispute resolvers – i.e. lawyers – need no further training). On that second point, there is at least anecdotal evidence that the more we see lawyers at least going through a basic mediation training programme, the more likely it is they will improve their negotiation skills and also act more effectively as advocates in mediations.

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Here’s another speculation: a few blogs ago I referred to the work of Richard Nisbett, The Geography of Thought, and others in considering the differences in perceptions that can be broadly and empirically identified between West and East. Nisbett’s work clearly indicates that we do not share the same cognitive or perceptual worlds, even though we may be ‘wired’ in the same ways. The point made by Nisbett is that there are not merely patterns of communication reflecting cultural differences: they are indications of diversities in patterns of cognition. This too goes to the point that Trompenaars makes, that the core of cultural life, typically the unseen, relatively inaccessible core, is that part that allows us to make sense of our worlds. As Nisbett says, the implications of these distinctions is that:

“members of different cultures differ in their ‘metaphysics’, or fundamental beliefs about the nature of the world . . . [and that] the characteristic thought processes of different groups differ greatly . . . [and that] the thought processes are of a piece with beliefs about the nature of the world.” [xvii]

The question is this:

“If people really do differ profoundly in their systems of thought – their worldviews and cognitive processes – then differences in people’s attitudes and beliefs, and even their values and preferences, might not be a matter merely of different inputs and teachings, but rather an inevitable consequence of using different tools to understand the world.” [xvii]

The consequence of all of this is that it allows us to draw some broad conclusions about likely cognitive and perceptual differences between Easterners and Westerners including:

  • Attention to relationships or to objects [44-45];
  • Belief in the controllability of the environment, or not [in which I’d include assumptions about the capacity – or even the ‘right’ to create rules and principles for one’s own world – as in mediation];
  • Assumptions about stability or change;
  • Inclination to seek a ‘Middle Way’ to deal with contradictions or to insist on the [logical] correctness of one view or another.

Two implications:

  • Process – how the structure of mediation is designed
  1. To facilitate different expectations of participation; and
  2. To facilitate a certain structure of thought and “problem solving”; and
  • Norms, principles: how mediation is designed or used to either
  1. Encourage parties to create their own norms (even if “in the shadow of the law”); or
  2. Allow parties to recognise existing and applicable social norms

Further, Nisbett breaks down these distinctions (between relatively dependent and relatively independent societies) along 4 broad lines:

  • Insistence on freedom of individual action vs. a preference for collective action.
  • Desire for individual distinctiveness vs. a preference for blending harmoniously with the group.
  • A preference for egalitarianism and achieved status vs. acceptance of hierarchy and ascribed status.
  • A belief that the rules governing proper behaviour should be universal vs. a preference for particularistic approaches that take into account the context and the nature of the relationships involved.” [61-62 – his bullet points]

What seems then to be the core of this is the difference between dependent and independent values, and the cognitive expression of those values.

Nisbett carries his analysis over into a discussion of styles of conflict and negotiation [73ff], noting

  • A greater Western willingness to hold and defend opinions; and
  • A lesser degree of argumentation in Asian life (and avoidance of ‘lively discussion’ that might challenge group harmony);
  • Attention to ‘fairness’ in the West, in the equal application of public rules; or to ‘harmony’ and animosity reduction – especially as the desired role of any arbiter;
  • The Western style of negotiation – with individual as ‘agent’ – as grounded in the belief that the individual can manipulate the environment for his own ends [citing Mushakoji Kinhide, “The cultural premises of Japanese diplomacy,” in J C f. I Exchange (ed) The Silent Power: Japan’s Identity and World Role, (Tokyo, Simul Press, 1976)] – based on a process and logic of setting out one’s objectives, developing a plan, and acting on that plan; and noting that such a plan and process do not depend on relationships, it’s results that count. [Kinhide, 45-46].
  • Negotiations might then – for Western participants – be instrumental, ideally brief, practical. But the Japanese style, by contrast, assumes that the individual adjusts him/herself to the environment; relationships (and negotiations) are never one-off; relationships are preserved for the long run; either/or choices are to be avoided. (Nisbett, 76).
  • Equally, ideas and issues are more likely to be compartmentalised, fragmented, ranked, for the Western negotiator; and more likely to be seen as intertwined, complex, subjective, for the Asian negotiator.

There’s one other factor I’d now add which might influence the different ways in which parties will approach dispute resolution and the moral priorities in determining outcomes: Jonathan Haidt and colleagues have been doing fascinating work on the psychology of moral judgment and particularly on the degree to which our moral intuitions guide our judgments. See: http://www.ted.com/talks/lang/eng/jonathan_haidt_on_the_moral_mind.html

More specifically – and here’s the culture and mediation link – he notes that there are five ‘foundational’ moral values:

  1. avoidance of harm, concern for care of others;
  2. fairness, justice, reciprocity;
  3. community, in-group loyalty;
  4. hierarchy and authority; respect;
  5. purity, sanctity; faith & sacramental virtues

– and he notes that self-described ‘liberals’ are likely to give weight to the first two values, and to regard the other three as not relevant to morality; and ‘conservatives’ tend to adopt a ‘five factor’ morality, incorporating all of those factors. This distinction apparently applies across cultures.

So far so good. But the questions I raise are these:

  • even given the relative consistency of differences between liberals and conservatives, whether in Western or Asian nations, is it more likely that there will be a higher proportion of ‘conservatives’ in Asian societies; and
  • if that’s the case, how do we adjust mediation practice – if at all – to accommodate the more complex priorities that go beyond the avoidance of harm and pursuit of fairness values, and include preferences for loyalty, authority and sacramental values;
  • are the ‘conventions’ of mediation, especially those of autonomy, agency, choice, interest-based preferences, and the questions of qualifications raised in my last posting, more geared to the ‘two factor’ value set of the liberal world?
  • are the ‘conservative’ societies more likely to be the high-context ones :

“Low-context cultures prefer to separate the conflict issue from the person, but high-context cultures view the problem issue and the problem person as interrelated. So while the one perspective seeks to manage the conflict from an instrumental, solution-oriented, impersonal stance, the other sees the affective, relational, personal issues as indivisible, so open conflict is best avoided at all costs. Thus the low-context cultures tend to view the world in analytic, linear, logical terms, that allow them to be hard on problems but soft on people, focused on instrumental outcomes but easy on affective issues; while high-context cultures perceive the world in synthetic, spiral logic that links the conflict event and its impact, issues, actors, content, and context.”

David W. Augsburger, Conflict Mediation Across Cultures: Pathways and Patterns, Louisville, KY; Westminster/John Knox Press, 1992), p.91

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This is the first of what’s going to need to be an occasional foray into this question of standards in mediation. It’s not a new question – over at least the last decade, various mediation governmental advisory bodies have sought to deal either with uniform standards or with more specific guidelines on elements of mediation practice and ethics (such as confidentiality, mediatory neutrality etc). The increased visibility and adoption of mediation – and its emergence, at last, from the “alternative” hideout – means that there is an understandable concern about competence. Leading this current push is the International Mediation Institute [http://www.imimediation.org/] – and in the interests of transparency I need to disclose that I’m a member of the Independent Standards Commission. In the further interests of same: none of these comments in any way represent the views of the IMI or the ISC.

This is just a bit of thinking out loud, and a hope that other mediators might chip in, especially from the parts of the world that typically don’t feed into the conventions and standards of mediation.

At this stage, I raise just one question about the idea and interpretation of “competence” – and in fact it’s a question of two parts. First, the inquiry into standards of competence is directed towards the quality and qualifications of mediators – understandably. But there’s another aspect of competence that seems central to mediation principles and philosophy – and that is the competence and capacities of the disputants. One aim of mediation – it seems to me – is to work with parties not only on the current dispute but also on their ongoing resources and capacities in disputing and problem solving generally. So, if we’re concerned with the question of competence in mediation, we might need to take in this wider inquiry. [Of course we’ve also met the pragmatic and ‘practical’ mediators who will insist that this is not part of the job – or at best is only an incidental side benefit of participation in mediation.]

The second aspect of the competence question is the more specifically cultural one: if, as seems the case, we’ve concerned to develop international standards of competence and quality control, what differences in cultural perceptions and priorities need to be taken into account? At the very least, we need to be aware of the distinction drawn by intercultural researchers between “acquired” and “ascribed” status and standing: for the first, competence is measured by qualifications and “expertise”; for the second, competence is derived from social standing, age, and perceived experience. These do not necessarily blend into each other.

This raises a third sub-issue – and one that will in due course be addressed by the IMI: the criteria of intercultural competence, as a specific aspect of the basic concern with mediator competence. On this, see a recent article by FonsTrompenaars and Peter Woolliams on transcultural competence: http://www.trompenaars.com/Articles/A%20New%20Unified%20Model%20of%20Trans-Cultural%20Competence%20(PW_FT).pdf. I note especially their comment:

We thus begin to understand why there are numerous definitions of good leadership. You read Warren Bennis and you find it is all about vision, mission and transparency. You go to the French literature and read how great leaders are functions of their educational background. Compare with the Asian literature that suggest you should be male, senior and from the University of Tokyo.”


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